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State v. Haoran Pu

The Court of Appeals of Washington, Division One
Mar 7, 2011
160 Wn. App. 1024 (Wash. Ct. App. 2011)

Opinion

No. 64549-8-I.

Filed: March 7, 2011.

Appeal from a judgment of the Superior Court for King County, No. 09-1-00804-0, Catherine D. Shaffer, J., entered December 8, 2009.


Affirmed by unpublished opinion per Grosse, J., concurred in by Ellington and Lau, JJ.


A unanimity instruction on alternate means is not required when, as here, the State did not charge alternate means of the crime, but simply defined the one means charged. Accordingly, we affirm.

FACTS

In July 2008, Seattle police received a complaint from a business owner who was concerned that another business in her building called "Global Massage," was engaged in prostitution. Detective Trent Bergman investigated the complaint and found two advertisements for "Asian massage" offered by "Global Massage" on Craigslist, a website that posts goods and services for sale. One of the advertisements included a picture of five Asian women wearing lingerie.

On August 18, 2009, Detective Dale Williams entered Global Massage in an undercover capacity. He was greeted by Dongfang Li, who told him he could start with a 60 minute massage and then could decide if he wanted more. Williams gave Li $100 and received a 60 minute massage from a woman named Ms. Ciu.

After the massage, Li asked Williams why he did not want the extra massage. When Williams asked what the difference was, Li explained that he could have a massage for $60 and for an extra $30, he could receive what Williams understood to be masturbation by another woman. Li described this by cupping her hand and moving it up and down, simulating masturbation of a male sex organ. Li also described to Williams the difference between what she called a "hard" massage and a "soft" massage. She said that the "hard' massage was a regular massage and the "soft" massage was the masturbation she described with the hand gestures. She also identified Ms. Ciu as the woman who performs the "hard" massage and another woman named Ms. Jen who performs the "soft" massage. Li then asked Williams again if he wanted the "soft" massage for $30. Williams initially agreed, but then acted as though he had changed his mind and told her he would be back later.

Further investigation of Global Massage revealed that Li was the president of the business and was listed as the tenant on the lease agreement for the business. On November 1, 2008, another undercover detective, Ronald Brundage, went to Global Massage. Brundage was greeted by Li and an Asian male named Haoran Pu. Brundage told Pu that a friend had told him to come there for the "King's massage" and made the same masturbating hand gesture Li made previously to Detective Williams. Pu laughed and said that would require two girls and they only had one available that night. Brundage said he would try again later for the "King's massage," but asked for a regular massage in the meantime.

Brundage then received a massage from Li in a back room. Brundage told Li he had come for the "King's massage." Li then explained to Brundage that the "King's massage" was one in which the customer first receives a "hard" massage for about an hour from one girl and then receives a "soft" massage from a second girl that would end in a "hand release" or "happy ending." Li also told him that they charged $1 per minute, so if he wanted 60 minutes with both girls, it would be $120 or 50 minutes per girl would be $100. Li checked with Pu two more times to see if he could find another girl for Brundage to perform the "King's massage," but Pu was unable to find one for him.

Li then told Brundage that there were not two girls available but that he was tense and she would give him a "hand release." When he asked her if a "hand release" meant "hand job," she said, "Yes, it was happy ending." He also asked her if that would cost extra, but she said it was included in the price. Brundage then agreed to it, but made up an excuse to leave before any sexual contact occurred. As he was leaving, Pu told him he would have two girls for the "King's massage" the next time he came.

Detectives obtained a search warrant for Global Massage and arrested Li at the time the warrant was executed. The State charged Li with two counts of promoting prostitution and charged Pu with one count of promoting prostitution. Li testified at trial and admitted that she owned "Global Massage," but claimed that it provided cosmetology and beauty treatments and denied that any Asian women ever gave massages at her business. She claimed that any massages done in her business were on an automatic massage table. She also denied ever seeing Williams before the trial and that she ever used the terms, "hand release," "hand job," or "happy ending." Pu did not testify.

The jury acquitted Pu, but found Li guilty as charged. The court imposed a sentence of one day in jail on each count to be served concurrently and 29 days community service (the first time offender waiver). Li appeals.

ANALYSIS

I. Unanimity and Alternate Means

Li first contends that the trial court erred by failing to give a unanimity instruction because there were alternate means of committing the crime and the State failed to present sufficient evidence of each alternate means.

In an alternate means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.

State v. Kitchen, 110 Wn.2d 403, 410, 756 P.2d 105 (1988).

The State contends that because this case was not an alternate means case, a unanimity instruction was not required. We agree.

The elements of the crime of promoting prostitution are set forth in RCW 9A.88.080, which provides:

(1) A person is guilty of promoting prostitution in the second degree if he knowingly:

(a) Profits from prostitution; or

(b) Advances prostitution.

Thus, the statutory scheme creates only two alternative means of committing the crime of promoting prostitution: "profiting from prostitution" and "advancing prostitution."

State v. Doogan, 82 Wn. App. 185, 188, 917 P.2d 155 (1996).

Here, the State charged Li with committing the crime by only one means, advancing prostitution. Li contends that the statutory definition of this means creates further alternate means by which the crime may be committed. The statute defines "advances prostitution" as follows:

The information alleged that Li "did knowingly advance the prostitution of another person."

A person "advances prostitution" if, acting other than as a prostitute or as a customer thereof, he causes or aids a person to commit or engage in prostitution, procures or solicits customers for prostitution, provides persons or premises for prostitution purposes, operates or assists in the operation of a house of prostitution or a prostitution enterprise, or engages in any other conduct designed to institute, aid, or facilitate an act or enterprise of prostitution.

But as our courts have made clear, statutory definitions do not create additional alternative means of committing a crime. Nor do definitional instructions create alternative means that implicate unanimity concerns, as Li contends here. As the court recognized in State v. Smith, "where a disputed instruction involves alternatives that may be characterized as a `means within [a] means,' the constitutional right to a unanimous jury verdict is not implicated and the alternative means doctrine does not apply." Likewise here, a unanimity instruction on alternate means was unwarranted.

State v. Linehan, 147 Wn.2d 638, 646, 56 P.3d 542 (2002) (general definition statute for theft and robbery); State v. Laico, 97 Wn. App. 759, 763, 987 P.2d 638 (1999) (definitions of "great bodily harm").

159 Wn.2d 778, 783, 154 P.3d 873 (2007) (citation omitted).

II. Sufficiency of the Evidence

Li next contends that the evidence was insufficient to support either count. She contends that on both counts, the evidence only establishes an attempt to promote prostitution and, on count II, there was no evidence that a person other than a prostitute promoted prostitution and that a sex act was offered for money. We disagree.

Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, any rational trier of fact could find the essential elements beyond a reasonable doubt. A claim of insufficiency admits the truth of the State's evidence and all inferences reasonably drawn from it.

State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006).

State v. Sanchez, 60 Wn. App. 687, 693, 806 P.2d 782 (1991).

Li first contends that the facts only established an attempt to promote prostitution. While she is correct that the facts do not establish that an act of prostitution occurred, the crime of promoting prostitution does not require completion of an act of prostitution. Rather, as stated above, the statute requires that the State prove only that the defendant procured or solicited customers for prostitution, provided persons or premises for prostitution purposes, operated or assisted in the operation of a prostitution enterprise or otherwise instituted, aided, or facilitated an act or enterprise of prostitution. As the State contends, substantial evidence supports such a finding. On both counts, the evidence showed that Li solicited Detective Williams for prostitution and provided persons or premises for prostitution purposes by offering to have another woman perform masturbation on him for an additional fee.

Li further contends that the evidence was insufficient on count II because the State failed to prove that a person other than the prostitute promoted prostitution and the sex act was not offered for a fee. Li is correct that the evidence showed that she eventually offered to perform the act herself and offered it to Detective Brundage for the same price as the regular massage, not for an additional fee as in count I. But there was additional evidence that before she offered to perform it herself, Li offered Brundage a "King's massage" or a "hand job" to be performed by another girl for a fee. This was sufficient to support a finding that she solicited a customer for prostitution. As with count I, proof of a completed act of prostitution was not necessary.

She also made two attempts to find a girl for him before offering to do it herself.

Additionally, Brundage was also assured that when he came next time for the "Kings massage," there would be two girls available for him.

III. Jury Instructions

Li also challenges the court's instructions to the jury, contending that the trial court erred by including the alternative means of "profits from prostitution" in its definition of the crime when she was not charged with this conduct. She further contends that the trial court erred by failing to instruct the jury on the lesser included charges of attempting to promote prostitution and permitting prostitution. We disagree.

Jury instructions are sufficient when, viewed as a whole, they properly inform the jury of the applicable law, are not misleading, and permit the parties to argue their theories of the case. Li first argues that the trial court erred by instructing the jury on the uncharged alternate means of profiting from prostitution. But as the State points out, the court did not instruct the jury that to convict, it could find the alternate means of profiting from prostitution. While the court first defined the crime of promoting prostitution to include both means of advancing and profiting from, it then instructed the jury that to convict it had to find only that the defendant advanced prostitution. The court also defined "advancing prostitution," but did not define "profiting from prostitution." Viewing the instructions as a whole, they sufficiently informed the jury of the elements of the charged crime and made clear that Li was charged only under the "advances prostitution" alternative.

State v. Tili, 139 Wn.2d 107, 126, 985 P.2d 365 (1999).

Nor did the trial court err by failing to include lesser included instructions on attempt and permitting prostitution. First, because Li failed to request these instructions at trial, she has waived this claimed error on appeal. But even if she properly preserved the claim, it is without merit. To require the court to instruct the jury on a lesser include charge, the defendant must establish that (1) all the elements of the lesser offense are necessary elements of the charged offense and (2) the evidence supports an inference that only the lesser crime was committed. Under the second prong, "the evidence must raise an inference that only the lesser included/inferior degree offense was committed to the exclusion of the charged offense." It is not enough that the jury might disbelieve the evidence showing guilt; the evidence must affirmatively establish the defendant's theory of the case.

State v. Stevens, 158 Wn.2d 304, 310, 143 P.3d 817 (2006).

State v. Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000).

Fernandez-Medina, 141 Wn.2d at 456.

Again, Li confuses the crime of promoting prostitution with committing prostitution and relies on the fact that no act of prostitution occurred to support her argument that the facts establish only an attempt to promote prostitution. As discussed above, the facts establish that Li solicited customers to pay for sex acts to be performed by others in her place of business which supports a finding that she advanced prostitution. Li fails to point to facts that established only an attempt to do so to the exclusion of the charged offense.

Nor has Li established that an instruction on the charge of permitting prostitution was warranted here. As the State argues, that crime is not a lesser included offense of promoting prostitution because its elements are not necessary elements of promoting prostitution. The crime of permitting prostitution is defined as follows: "A person is guilty of permitting prostitution if, having possession or control of premises which he knows are being used for prostitution purposes, he fails without lawful excuse to make reasonable effort to halt or abate such use." Failing to abate the use of a premises for prostitution purposes is not an element of advancing prostitution. Nor was it possible to conclude from the evidence that Li committed only permitting prostitution. The evidence established that she was not simply aware of the prostitution activity and failed to take steps to abate it, but that she acted affirmatively to advance prostitution.

As noted above, advancing prostitution involves soliciting, customers for prostitution, providing persons or premises for prostitution purposes, operating or assisting in the operation of a house of prostitution or a prostitution enterprise, or engaging in any other conduct designed to institute, aid, or facilitate an act or enterprise of prostitution. RCW 9A.88.060(1).

IV. Ineffective Assistance of Counsel

Finally, Li contends that counsel was ineffective for failing to propose a unanimity instruction and instructions on the lesser included charges of attempting to promote prostitution and permitting prostitution. As discussed above, none of these instructions were warranted. Thus, counsel did not err by failing to request them and the ineffective assistance claim is without basis.

We affirm the judgment and sentence.

WE CONCUR:


Summaries of

State v. Haoran Pu

The Court of Appeals of Washington, Division One
Mar 7, 2011
160 Wn. App. 1024 (Wash. Ct. App. 2011)
Case details for

State v. Haoran Pu

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. HAORAN PU, Defendant, and DONGFANG LI…

Court:The Court of Appeals of Washington, Division One

Date published: Mar 7, 2011

Citations

160 Wn. App. 1024 (Wash. Ct. App. 2011)
160 Wash. App. 1024